Next steps for agencies after public-private email decision

MUNICIPAL MATTERS

A city manager’s personal cellphone buzzes in the early morning hours with notice of a string of urgent texts advising about the details of a breaking crisis in the city. Recognizing the urgency, she responds to the police chief and others with strategy and directions, all the while believing these communications to be confidential. Sometime later litigation is looming, and the city receives a Public Records Act request seeking all text and electronic communications recorded on the city manager’s phone.

Based on the California Supreme Court decision in City of San Jose v. Superior Court, 2017 DJDAR 1896 (March 2, 2017), the presumed confidentiality of the city manager’s communications is now in jeopardy, and this public employee’s texts and other personal cellphone communications regarding public agency business may now be deemed public records.

Whether public employee emails or text message constitute public records when sent and stored on the employees’ personal accounts was the issue in San Jose. There, the Supreme Court declared that such emails and text messages are in fact disclosable public records under the California Public Records Act.

The court’s decision was not unexpected. But as with any groundbreaking ruling, the decision raises new and challenging questions that agencies will now need to address.

The Stated Reasons for the Court’s Decision

The Supreme Court reasoned as follows in reaching its decision.

• Emails and text messages are just as much records under the CPRA as are paper documents. The court examined the act’s definition of “writings” and found that it clearly includes all types of electronic communications.

• Emails or text messages on personal accounts that relate to public agency business are effectively “prepared by” that agency. Examining the text of the CPRA, the court applied technical rules for interpreting statutes to reach this conclusion.

• Emails or text messages sent on private accounts also effectively belong to an agency when such communications relate to agency business. Even though the agency may not store or keep the communications itself, the agency has the right to control records that belong to its employees. Such “constructive” possession, the court reasoned, was enough to make the communications ones that belonged to the agency.

However, it should be noted that in a separate section of its opinion, the court took the opportunity to point out the “policy considerations” that apparently informed its decision. The court’s attention to these considerations perhaps betrays an underlying motivation. The court observed:

“If communications sent through personal accounts were categorically excluded from [the] CPRA, government officials could hide their most sensitive, and potentially damning, discussions in such accounts.”

Ultimately, the court may well have been concerned about opening avenues for offline discussions that allow public officials to evade the transparency of open government. This holding now affords a means of stretching traditional rules of statutory interpretation to reach its desired holding.

New Questions Arise

Agencies now must consider how to implement the Supreme Court’s ruling. They will face some challenging questions in doing so.

A vexing question will be how to determine when an email or text message on a personal account is in fact an agency record. The court attempted to shed light on this subject by making clear that a personal email or text message must “relate in some substantive way to the conduct of the public’s business” to be a disclosable record. It elaborated that “incidental mentions of agency business” do not meet this standard. As examples, the court stated that an employee’s email to a spouse stating, “my coworker is an idiot” would not be a public record, but that an email to a superior reporting a fellow employee’s mismanagement of a project “might well be.”

Another challenging question is how agencies should determine whether an employee has disclosable records on a personal email account or cellphone. The court did not mandate any specific procedures agencies must follow, but it did state that agencies may rely on the employees themselves to conduct the necessary searches. The court appeared to condition this authorization, however, on the fact that the employees would first be trained to distinguish between disclosable and non-disclosable records, and that they would submit an affidavit providing sufficient information to support their assertion that communications are not subject to disclosure.

Next Steps

The Supreme Court noted that agencies may develop their own internal guidelines for responding to public records requests and many agencies have done so. In light of this new decision, it is reasonable to expect that requests for personal emails and text messages, especially of elected officials, may show a marked increase in frequency as this avenue of access becomes another arrow in the litigation quiver. Agencies may wish to revisit their internal guidelines, if adopted, or develop such guidelines if they have not yet done so. Public employees utilizing their personal phones may want to carefully consider the potential exposure created by the ruling in San Jose. At a minimum, local agencies should consult with their counsel about how best to implement the ruling.